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[G.R. No. 7404. December 11, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. ISIDORO ESPIRITUSANTO, Defendant-Appellant.

Allen A. Garner for Appellant.

Attorney-General Villamor for Appellee.


1. AUTHORITY OF MUNICIPAL COUNCILS TO SUPPRESS GAMBLING; "TO PROVIDE AGAINST," INCLUDES POWER TO PROHIBIT. — A municipal council acts within its power, as conferred by the organic law, in enacting an ordinance prohibiting the game called jueteng within the limits of the municipality. The Municipal Code, Act No. 82, section 39, authorizing municipalities to provide against the evils of gambling, should be understood to include the power to prohibit games of chance and to make necessary regulations to exterminate the evils arising from the playing of prohibited games.

2. ID.; ID.; — A municipal ordinance prohibiting the game of jueteng is, furthermore, in conformity with the provisions of Act No. 1757, inasmuch as jueteng is included in the games of chance that are absolutely prohibited by the general law.



This is an appeal by the defendant from the judgment of conviction rendered in this case by the Honorable Herbert D. Gale, judge.

In view of certain proceedings in the justice of the peace court of Malabon and the appeal by the defendant from the judgment therein rendered, whereby he was sentenced to the payment of a fine of P50, to subsidiary imprisonment and the costs, the provincial fiscal of Rizal on June 24, 1911, filed an information in the Court of First Instance, charging Isidoro Espiritusanto with a violation of municipal ordinance No. 1, series of 1910, enacted by the municipal council of Malabon, Rizal, inasmuch as the accused, on November 16, 1910, was in that pueblo found to be engaged, willfully, unlawfully, and criminally, in collecting wagers for the gambling game known as jueteng, the tickets necessary for conducting the same having been seized in his possession.

Therefore this cause was instituted, and after due consideration of the evidence adduced judgment was rendered, on September 25, 1911, sentencing the defendant, for a violation of the said ordinance, to the payment of the fine previously imposed upon him by the justice of the peace and, in case of insolvency, to the corresponding subsidiary imprisonment, and the costs. Defendant’s counsel appealed from this judgment on the ground that said ordinance was unconstitutional.

The ordinance in question, exhibited on page 9 of the record, was passed by the municipal council of Malabon on January 5, 1910, and amended at the sessions of the 27th of March and the 14th of June of the same year. It strictly prohibits the game of jueteng within the limits of the said pueblo and prescribes the penalties to be imposed for its violation; and it further provides that any person who shall collect money for wagers on the said game, or who shall keep, make, or prepare any list of numbers, or representative signs thereof, for use in such game, shall be deemed to be a collector of jueteng, and bankers, those who directly conduct the game, receive from the collectors the tickets or other contrivances, and are found in possession of the tambiolos or other articles used for the purpose of conducting the said game; and that, finally, those who keep or maintain jueteng games shall be deemed to be keepers or maintainers of gambling houses, in accordance with the provisions of section 6 of Act No. 1757.

After this judgment had been rendered, defendant’s attorney presented a motion had requesting that it be set aside on the grounds that the court lacked jurisdiction to try the case and sentence the defendant, for the reason that the ordinance under which he was tried and convicted was unconstitutional and invalid, but the court held in its judgment that it was no defect in an ordinance or municipal regulation to fail to express its subject in its title. This motion was overruled.

Assuming the defendant’s guilt, since he was engaged in collecting wagers for the game of jueteng, a game prohibited by law as one of chance, and since the judgment of conviction, rendered by the justice of the peace of the pueblo of Malabon, was affirmed by the Court of First Instance, we shall only treat in this decision of the argument advanced by the defense in maintaining this second appeal, to wit, that the Court of First Instance lacked jurisdiction over the subject matter of the suit, for the reason that the aforementioned ordinance passed by the municipal council of the pueblo of Malabon, under which the appellant was prosecuted and convicted, is unconstitutional.

Defendant’s attorney argues that the ordinance is contrary to the municipal code because the council exceeded the powers conferred upon it by the code which, in subsection (u) of section 39, only authorizes it "to provide against the evils of gambling, gambling houses, and disorderly houses of whatsoever sort," while the first paragraph of the said ordinance prescribes that it is strictly prohibited to play jueteng within the territorial limits of Malabon, and provides the penalties for its violation.

From a perusal of the text of the ordinance referred to, it is unquestionable that it is in accord with the provisions of Act No. 1757, inasmuch as the latter strictly prohibits the playing of monte, jueteng or any other kind of lottery, banking or percentage games; and the said Municipal Code, by providing in section 39 that the municipal council shall provide against the evils of gambling, granted it the authority to prohibit gambling games such as those specified in the said ordinance; therefore, the municipal council concerned acted within the powers conferred upon it by the Municipal Code and in accordance with the provisions of the said Act No. 1757, since the game of jueteng, as one of change absolutely prohibited by the latter, is not susceptible of regulation, but must be prosecuted and completely suppressed in order to avoid repetitions of the great and far-reaching social and moral evils it has been producing in the towns of these Islands.

Hence it is undeniable that the said municipal council, in passing the said ordinance, did not exceed its authority and kept strictly within the powers conferred upon it by its organic law and the general laws that deal with gambling.

With regard to the allegations that the said ordinance is in conflict with the provisions of section 5 of the Act of Congress of July 1, 1902, it must be considered that an ordinance has not the character of and is not a general law, but is merely a regulation of a local nature, and one perfectly valid and effective, provided it is in harmony with the general laws in force in the Islands. Therefore, it is not indispensable that its subject should appear in the title, for the provisions of the said Act of Congress refer to the general laws that govern in a State and to those enacted in these Islands which, indeed, must not embrace more than one subject and that subject must be expressed in the title. This constitutional provision has no application to municipal ordinances, as these do not partake of the nature of laws, but are mere rules provided for the fulfillment of the laws. This principles is laid down in the Encyclopedia of Law and Procedure. (Vol. 28, p. 378, and vol. 36, p. 1021.)

For the foregoing reasons we deem it proper to affirm and do hereby affirm the judgment appealed from, with the costs against the Appellant.

Arellano, C.J., Mapa and Johnson, JJ., concur.

Carson and Trent, JJ., dissent.

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